Whitt v. Warden Lebanon Correctional Institution

Filing 16

ORDER granting 12 Motion ; adopting Report and Recommendations re 13 Report and Recommendations.; denying 15 Motion to Amend/Correct. Signed by Judge James L Graham on 6/1/2015. (ds)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
STEPHEN H. WHITT,
Petitioner,

CASE NO. 2:15-CV-560
JUDGE JAMES L. GRAHAM
Magistrate Judge Elizabeth A. Preston Deavers

v.
ERNIE MOORE, WARDEN,
LEBANON CORRECTIONAL
INSTITUTION,
Respondent.
OPINION AND ORDER
On May 6, 2015, the Magistrate Judge issued a Report and Recommendation, ECF 13,
recommending that Respondent’s Motion to Transfer, ECF 12, be granted, and that the instant
petition for a writ of habeas corpus be transferred to the United States Court of Appeals for the
Sixth Circuit as a successive petition. Petitioner has filed a Response in Opposition, ECF 14, and
Motion to Amend and Supplemental Pleading, ECF 15, which the Court construes as Objections
to the Magistrate Judge’s Report and Recommendation.
Petitioner maintains that the Court should address the merits of this habeas corpus
petition because he has exhausted claims he raised in his prior habeas corpus petition, and
because, he maintains that he asserts a new ground for relief regarding re-imposition of sentence.
However, this is Petitioner’s second habeas corpus petition in which he challenges his April 13,
2010 convictions in the Coshocton County Court of Common Pleas on rape and gross sexual
imposition. See Whitt v. Warden, Lebanon Correctional Facility, Case No. 2:12-cv-00731.
Although the Court in Case No. 2:12-cv-00731 initially recommended that the petition be
dismissed as unexhausted, Petitioner later exhausted state court remedies. The Court dismissed

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the action as procedurally defaulted and without merit. The United States Court of Appeals for
the Sixth Circuit denied Petitioner’s petition for a certificate of appealability. ECF 69. Further,
Petitioner does not now assert a new claim regarding re-imposition of sentence. Rather, he raises
the same argument that he did in his prior federal habeas corpus petition.
Pursuant to 28 U.S.C. § 636(b), this Court has conducted a de novo review. For the
reasons that follow, and for the reasons addressed in the Magistrate Judge’s Report and
Recommendation, Petitioner’s Objection, ECF 14, 15, is OVERRULED.

The Report and

Recommendation, ECF 13, is ADOPTED and AFFIRMED. Respondent’s Motion to Transfer,
ECF 12, is GRANTED.

The instant petition for a writ of habeas corpus hereby is

TRANSFERRED to the United States Court of Appeals for the Sixth Circuit as a successive
petition.
IT IS SO ORDERED.

Date: June 1, 2015

s/James L. Graham
JAMES L. GRAHAM
United States District Judge

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